On Friday the Fifth Circuit Court in New Orleans put a stay on FDA rules concerning mifepristone.
What’s being stayed is the FDA’s rules that allow mifepristone to be prescribed by telehealth, dispensed by retail pharmacies, and sent through the mail.
The stay has been issued because the Fifth Circuit believes that the challengers are likely to win their claim that the FDA’s 2021–2023 mifepristone rule changes were unlawful administrative actions.
The court stayed the rules because it thinks the FDA may have exceeded its authority, acted arbitrarily, or failed to follow required procedures when it loosened mifepristone restrictions.
Not surprisingly since this is coming from the Fifth Circuit, that is putting legal-sounding wrappings on a crypto moral package.
So, the next move, if one is made, is at the Supreme Court.
That's where things get interesting.
No, I mean really interesting.
When The Court overturned Roe v Wade and said that that sort of decision needs to be made at the state level, they laid down a pretty clear statement.
1. Dobbs said: “Return abortion to the states.”
That was the Court’s own stated principle:
• abortion is not a federal constitutional right
• therefore, states may regulate it
• federal courts should step back
That was the Court’s announced philosophy.
2. But the Fifth Circuit stay is a federal override of state choices.
The stay:
• blocks mail order mifepristone
• blocks telehealth prescribing
• blocks pharmacy dispensing
Those blocks all apply even in states that explicitly chose to allow all of those things (are applying the Supreme Court's "Dobbs Principal").
That is the opposite of “returning the issue to the states.”
3. If the Supreme Court affirms the stay, it contradicts Dobbs.
They would be saying:
“States should decide abortion except when a federal court - in this case the Fifth Circuit - wants to impose a national restriction.”
That’s not federalism; that’s arbitrary and capricious federalism - federalism as a moral weapon, not a principle.
4. If the Supreme Court reverses the stay, it must defend the FDA.
Which means:
• reaffirming agency expertise (not law but instead, medical bureaucracy - not the Court's forté)
• implicitly allowing abortion access via medication
These actions risk angering the same political coalition that celebrated Dobbs; so, the Court must reverse without appearing to reverse the moral direction of Dobbs.
That’s gonna be a real interesting show of moral-rhetorical gymnastics.
5. If the Court refuses to hear the case, it silently endorses a national abortion restriction.
And that would be:
• a de facto national ban on mail order abortion
• imposed by a lower court
• without the Supreme Court taking responsibility
That would be an abdication of the stated principle of local states' rights in Dobbs.
So, the Court’s quandary is multi-dimensional.
They must somehow:
1. Avoid contradicting Dobbs
2. Avoid endorsing the Fifth Circuit’s attack on FDA authority
3. Avoid appearing to expand abortion access
There is no clean path; every path requires doctrinal contortion, a phenomenon that we used to call in the Air Force "flying up one's tailpipe".
And the absurdity of the quandary is that the Court created this trap for itself.
Dobbs was written as if the Court could simply “hand the issue back to the states” and walk away.
But abortion is not a neat, state-bounded issue.
The fact that that only looms large now suggests the paucity of intellect and talent, or the depth of the real revisionist agenda of the Supreme Court.
Abortion intersects:
• federal drug regulation
• interstate commerce
• telehealth
• mail delivery
• administrative law
• FDA authority
The Court pretended it could isolate abortion from the rest of the federal system.
Reality is now proving otherwise.
And it's going to be a real goat rodeo.
